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Citron: Nonconsensual disclosure of naked images needs to be criminalized

A new law in Israel makes it a sex crime to post sexual pictures or videos to the internet without the consent of the person featured in them. We need to follow that example.

Revenge porn can ruin a person's life. A single post can go viral. For example, in the United States, "Jane" allowed her ex-boyfriend to take her naked photograph because, he assured her, it would be for his eyes only. After their breakup, the man betrayed her trust.

On the revenge porn site UGotPosted, he uploaded her naked photo and contact information. Jane received calls, e-mails, and Facebook friend requests from hundreds of strangers, many of whom wanted sex.

After the site refused to take down the post and the anonymous calls and e-mails intensified, she turned to law enforcement. According to the officers, nothing could be done because her ex had not engaged in a harassing "course of conduct," as required by criminal harassment law, and because he had not explicitly solicited others to stalk her.

Danielle Keats Citron

Criminal law should have a role in deterring and punishing revenge porn. It's not new that certain types of privacy invasions are crimes. Many states prohibit the nonconsensual taking of sexually explicit images -- the disclosure of someone's naked images should be criminalized as well.

Only California and New Jersey have laws against turning people into objects of pornography without their permission -- although a huge loophole in California allows the posting of "selfie" images and only applies to photos posted by the photographer.

Revenge porn and its ilk raise the risk of offline stalking and physical attack. Fear can be profound. Victims don't feel safe leaving their homes. Jane, who is a nurse, did not go to work for days. As many victims have told me, they struggle especially with anxiety, and some suffer panic attacks. Revenge porn victims withdraw from online engagement, shutting down their social media profiles and blogs to prevent strangers from finding them online. They cannot participate fully in our networked age.

The professional costs of revenge porn are steep. Because searches of victims' names display their naked images, they lose their jobs. Schools have fired teachers whose naked photos appeared on revenge porn sites. A government agency terminated a woman's employment after a co-worker circulated her nude photograph to colleagues.

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Recruiters don't contact victims to see if they posted nude photos of themselves or if someone else did in violation of their trust. The simple but regrettable truth is that after consulting search results, employers don't call revenge porn victims to schedule an interview or to extend offers. It's just seen as good business to avoid hiring people whose search results would reflect poorly on them.

Revenge porn is a harmful form of bigotry and sexual harassment. It exposes victims' sexuality in humiliating ways. Their naked photos appear on slut shaming sites. Once their naked images are exposed, anonymous strangers send e-mail messages that threaten rape. Some have said: "First I will rape you, then I'll kill you." Victims internalize these frightening and demeaning messages.

New Jersey is the only state to make it a felony to disclose a person's nude or partially nude images without that person's consent. In California, it's a misdemeanor. The New Jersey statute is a helpful model for states that are considering proposals to criminalize revenge porn. Congress should amend the federal cyberstalking law, 18 U.S.C. § 2261A, to cover the use of any interactive computer service to produce or disclose a sexually graphic visual depiction of an individual without that individual's consent.

What about First Amendment objections to legislative proposals to criminalize revenge porn? A narrowly crafted criminal statute like New Jersey's can be reconciled with our commitment to free speech. First Amendment protections are less rigorous for purely private matters because the threat of liability would not risk chilling the meaningful exchange of ideas.

Listeners and speakers have no legitimate interest in nude photos or sex tapes published without the subjects' permission. That online users can claim a prurient interest in viewing sexual images does not transform them into a matter of legitimate public concern. Nonconsensual pornography lacks First Amendment value as a historical matter, and could be understood as categorically unprotected as obscenity. Although the Court's obscenity doctrine has developed along different lines with distinct justifications, nonconsensual pornography can be seen as part of obscenity's long tradition of proscription.

Criminalizing revenge porn is a crucial step in protecting victims from real and profound harms to their physical, emotional, and financial health and safety. It would deter damaging privacy invasions and send the powerful message that posting someone's most private moments, most often in a breach of their trust and without their permission, is unacceptable.

That lesson needs to be repeated early and often before online users, especially young people, think that shaming and terrorizing individuals is an acceptable practice. We need a "cyber civil rights" agenda to combat bigoted online abuse. The criminalization of nonconsensual disclosure of someone's naked images is an important part of that agenda.